SCA/678/2008 2/ 5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 678 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= HINABEN JITUBHAI PATEL & 4 - Petitioner(s) Versus THE STATE OF GUJARAT & 8 - Respondent(s) ========================================================= Appearance : NOTICE UNSERVED for Petitioner(s) : 1 - 2.NOTICE SERVED for Petitioner(s) : 3 - 5. MR RASHESH RINDANI AGP for Respondent(s) : 1, RULE SERVED for Respondent(s) : 1 - 5. MR SHIRISH JOSHI for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 01/09/2010 ORAL JUDGMENT
Though
served, none appears for the petitioner Nos. 3 to 5 and petitioner
Nos.1 and 2 are not traceable at the given address.
2. The
matter pertains to election of a cooperative society. By interim
order of this Court dated 31.1.2008 certain directions were issued.
The said order, reads as under :-
Leave
to implead the District Registrar, Cooperative Societies, Ahmedabad
(Rural) as party respondent No.5.
Heard
Mr.Jani, learned Counsel appearing for the petitioners, Mr.Joshi,
learned Counsel for respondent No.4, Mr.Shukla, learned AGP for
respondents No.1, 2, 3, and 5 upon advance copy.
Prima
facie it appears that there are serious disputes about the
memberships of the Society and as per the petitioners, the amount
has been paid fully, the plots are allotted, but the membership
rights are yet to be confirmed. In a housing Cooperative Society
or Cooperative Society for the joint agriculture (Samudayik), though
there may be rights as the members, but at the same time the rights
of the allottee of the land cannot be totally ignored, unless some
detailed inquiry is made in this regard and the election can wait
thereafter. Further, as the appointment of custodian has been set
aside and the powers are given of the Committee to the Body, against
which there are serious allegations of manipulations of the records,
etc., it may leave room to further damage to the administration of
the Society and, therefore, I find that until the election is
ordered by this Court after the inquiry, as may be ordered
hereinafter and the report is placed before this Court, the
situation must remain under control to protect the rights of both
the sides.
As
there is no agreement on behalf of the respondent No.4 on the name
of the officer to inquire about the affairs of the Society, I find
that the officer of the State Government namely; District Registrar
can be assigned such work. Since the District Registrar, Ahmedabad
City respondent No.3 herein had exercised the power earlier
under Section 74D, it would be appropriate if such work of inquiry
is assigned to the other officer, who can be District Registrar,
Ahmedabad (Rural) respondent No.5 herein. Since the District
Registrar is even otherwise also normally supposed to be well-versed
with the administration of Societies, he would be in a position to
look into the matter and submit the report.
In
view of the above, I am inclined to pass the following order:-
(a) Rule.
By interim order, it is directed that:-
(i) Respondent
No.5, after giving opportunity of hearing to the petitioners as well
as to respondent No.4 or the original office-bearers of Respondent
No.4 Society, shall inquire into the following aspects and report to
this Court:-
(1) The
persons, who were original members of Savita Govind Samudayik Kheti
Sahakari Mandali Limited.
(2) The
persons, whose rights were created, may be by way of allotment of
the land, after receiving the money by the aforesaid Society;
(3) The
extent of such rights of the persons in the Society or its property
shall also be considered.
(4) At
the time of conversion of Savita Govind Samudayik Kheti Sahakari
Mandali Limited to Savita Govind Cooperative Housing Society
Limited, whether there was any change in the membership and if yes,
of what type (names and other details) ? The list of the members
of Savita Govind Coop. Housing Society Limited shall also be
examined and considered.
(5) If
there is any claim by any person after conversion of the status as
Savita Govind Coop. Housing Society Limited being the allottee of
the plot or the land after payment and the consideration
to the Society, the same shall also be considered and the extent of
the right of such persons in the Society and the property of the
Society shall also be considered.
(6) The
change of the revenue assessment from agriculture to
non-agriculture, whether sanction is there and, if yes, the order of
the competent authority. If required, the relevant opinion or the
views from the office of the District Collectorate may also be
called for and considered.
(7) The
details, if any, submitted by the office bearers of the Society or
representative of the Society to the revenue authority at the time
when Savita Govind Samudayik Kheti Sahakari Mandali Limited was
there at the time of conversion or thereafter to as Savita Govind
Coop. Housing Society Limited.
(8) The
conclusion of the Officer, after giving opportunity of hearing to
the parties concerned, in respect to the rights of the petitioners
as well as the other persons into the election or the affairs of the
Society and also the conclusion in respect to the rights of the
members holding share-certificates or otherwise into the election or
affairs of the Society.
(9) It
would be open to the petitioners as well as to the office-bearers of
the Society to produce documentary evidence in support of their
respective claims and if required, it would also be open to the
District Registrar to call upon the Society or the so-called
office-bearers of the Society, if they are in possession of the
record, by directing to produce the record before him for
verification of the genuineness or otherwise or in furtherance to
the aforesaid inquiry.
(ii) The
aforesaid process shall be completed within a period of three months
from the date of receipt of
the order of this Court and the report shall be produced before this
Court latest by 30.4.2008. It is observed that after the report is
produced before this Court, the matter shall be considered for
ordering election of the Society concerned.
(iii) Until
further orders, the office-bearers of the Society shall not take any
decision without prior express permission of this Court and the
status-quo as existing of the management of the Society shall be
maintained.
Office
to supply copy of the order to Mr.Shukla, learned AGP.
3.
In view of the above and in view of the fact that the petitioners are
absent, I am of the view that interests of justice would be met by
disposing of the petition on the lines of the above interim order. It
is ordered accordingly. The parties shall abide by the aforesaid
interim order. Rule is made absolute to the aforesaid extent with no
order as to costs.
Liberty
to revive this petition in case of difficulty.
(K.S.
JHAVERI, J.)
zgs/-